ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Revision Appln. No.D-01 of 2014.

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE.

08.5.2014.

For Katcha Peshi.

Mr. Sobhraj L.P., advocate for the applicant/complainant.

Mr. Imtiaz Ali Jalbani, Asst. Prosecutor General.

Mr. Athar Abbas Solangi, advocate for the accused.

O R D E R.

NAIMATULLAH PHULPOTO, J.- Through this Criminal Revision Application, applicant/ complainant has impugned the order dated 17.01.2014, passed by learned Judge, Anti-Terrorism Court, Larkana, whereby an application under Section 540, Cr.P.C in Special Case No.26/2011, arising out Crime No.275/2011, registered at P.S Kamber, for offence under Sections 365-A, 324, 34, PPC, read with Section 7(e) of the Anti-Terrorism Act, 1997, was declined.

2. Brief facts leading to the filing of the instant revision application are that on 12.9.2011 complainant Imtiaz Ali Tunio alongwith his brother Ali Hyder, nephews Waseem Hussain and Khalil was available at his rice mills situated near Kamber-Gaibi Dero road, where it is alleged that a car appeared at the rice mills and two persons, namely, Ghulam Sarwar Brohi, armed with repeater and Rafique Brohi, armed with Kalashnikov, got down, remaining culprits were sitting in the vehicle. Accused Ghulam Sarwar and Rafique aimed their weapons at the complainant party and asked them to keep quite. Thereafter, by show of force the accused persons kidnapped Waseem Hussain, the nephew of the complainant. At the time of incident firing was made by the accused, which resulted injuries to PW Ali Hyder. It is alleged that PW Waseem Hussain was kidnapped for ransom. Such F.I.R was lodged by complainant Imtiaz Ali Tunio on 12.9.2011 at P.S Kamber, vide crime No.275/2011, under Sections 365-A, 324, 34, PPC, read with Section 7(e) of the Anti-Terrorism Act, 1997.

3. After usual investigation challan was submitted against the accused in the Anti-Terrorism Court, Larkana.

4. At the trial, prosecution examined witnesses and side was closed. Statements of accused were also recorded under Section 342, Cr.P.C. Thereafter, prosecutor conducting the aforesaid prosecution case in the trial Court submitted an application under Section 540, Cr.P.C, praying to summon HC Muhammad Ramzan and WHC of Police Station Kamber, well conversant with the signature and handwriting of ASI Muhammad Shareef as, according to the prosecutor, ASI Muhammad Shareef had expired before his evidence. Application under Secton 540, Cr.P.C was rejected by the impugned order, mainly for the following reasons :-

“Admittedly the case is old one of 2011 and now the matter is fixed for final arguments. The complainant who is eye-witness of the case has not stated in his evidence about the recovery of weapons. Only PW Waseem Hussain has stated that the accused were arrested in his presence alongwith the weapons. He has not stated that the weapons were recovered from the accused persons in his presence. According to him when he was abducted by the accused persons, the Car was toppled down after covering some distance where accused Abdul Waheed died and both the present accused were arrested by the police and he was released. As the statements of the accused have been recorded and the case is fixed for final arguments, therefore, while relying upon the case law cited by the learned counsel for the accused, I am of the opinion that the application merits no consideration, and the same is hereby dismissed. Put off the case for final arguments.”

5. Mr. Sobhraj L.P., learned advocate for the applicant/complainant and Mr. Imtiaz Ali Jalbani, learned Asst. Prosecutor General, argued that HC Muhammad Ramzan and PC Subhan Ali are the mashirs of the arrest of accused. Both mashirs of arrest and recovery have not been examined in the trial Court. Author of the mashirnamas and head of police party, namely, ASI Muhammad Shareef has expired before recording his evidence. Evidence of HC Muhammad Ramzan would be essential for just decision of the case. It is submitted that trial Court by refusing to summon HC Muhammad Ramzan has virtually failed to provide an opportunity to the prosecution to produce important piece of evidence at the trial. Lastly, it is contended that ASI Muhammad Shareef has conducted some investigation in the case; unless mashirnamas bearing the signatures and handwriting of ASI Muhammad Shareef are not brought on record at trial, serious prejudice would be caused to the prosecution.

6. On the other hand, Mr. Athar Abbas Solangi, learned advocate for the accused, strongly opposed the application and argued that the case is fixed for final arguments. If application is allowed to examine P.Ws, it would amount to filling the gaps and omissions in the prosecution case and defence of the accused would be prejudiced.

7. After hearing the learned Counsel for the parties, we have perused the relevant record.

8. In our considered view, apprehension expressed by learned advocate for the accused that by allowing an application under Section 540, Cr.P.C gaps and omissions in the prosecution case would be filled, is totally unwarranted. It may straightaway be observed that insofar as Section 540, Cr.P.C is concerned, trial Court has unlimited powers to examine or recall witnesses in order to arrive at truth. Judicial Officer who has to give decision is not to sit entirely unconcerned during trial. It is obligatory on trial Court to record evidence of any witness if it is essential for just decision of the case. It is the matter of the record that HC Muhammad Ramzan is the first mashir of the arrest and recovery and second mashir is PC Subhan Ali. Both of them have not been examined. Rejection of the request of prosecutor for summoning HC Muhammad Ramzan on the ground that case is at final stage does not appear to be a dynamic judicial approach. Law always favours adjudication on merits by providing full opportunity to the parties to produce entire evidence at trial. Reference can be made to the case of Muhammad Azam v. Muhammad Iqbal, reported in PLD 1984 SC 95.

9. In such state of affairs, it cannot be said that in the circumstances of the case the learned trial Court has properly exercised the jurisdiction. Therefore, we set aside order dated 17.1.2014 passed by learned Judge, Anti-Terrorism Court, Larkana and direct the trial Court to summon HC Muhammad Ramzan and some well conversant person with signatures and handwriting of investigation officer, who has expired before evidence, for recording their evidence within the period of 15 days by giving full opportunity of cross-examination to learned Counsel for the parties. Thereafter, statement of accused under Section 342, Cr.P.C shall be recorded afresh, strictly in accordance with law. Consequently, criminal revision application is allowed. These are the reasons for our short order announced on 08.5.2014.

JUDGE

Qazi Tahir/*